Thompson v. State, Industrial Special Indemnity Fund, 083016 IDWC, IC 2011-028403

• Case Date: August 30, 2016
• Court: Idaho

MARY THOMPSON, Claimant, v. S TATE OF IDAHO, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant. No. IC 2011-028403 Idaho Workers Compensation Before the Industrial Commission of the state of Idaho August 30, 2016           FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           R.D. Maynard, Chairman          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Twin Falls on August 19, 2015. Claimant, Mary Thompson, was present in person and represented by Keith E. Hutchinson, of Twin Falls. Defendant State of Idaho, Industrial Special Indemnity Fund (ISIF), was represented by Anthony Valdez, of Twin Falls. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on May 3, 2016. The Commission has reviewed the Referee's proposed decision and disagrees with the treatment given by the Referee to the pre­existing condition, but not in the ultimate outcome. Therefore, the Commission substitutes this opinion for that of the Referee.          ISSUES          The issues to be decided presently are:1

1. Whether the Industrial Special Indemnity Fund is liable under Idaho Code § 72-332.

2. Apportionment under the Carey formula.

         CONTENTIONS OF THE PARTIES          Claimant asserts she is totally and permanently disabled pursuant to the odd-lot doctrine due to the combined effects of her pre-existing non-industrial left shoulder injury and her 2011 industrial right shoulder injury. She requests apportionment of liability to ISIF under the Carey formula. ISIF denies liability arguing that Claimant's pre-existing non-industrial left shoulder injury was not a pre-existing permanent impairment because her left shoulder injury had not reached maximum medical improvement at the time of her 2011 industrial right shoulder injury. ISIF also asserts that Claimant's industrial right shoulder injury and ensuing complex regional pain syndrome (CRPS) produced total permanent disability. Thus, her pre-existing left shoulder condition did not combine with her industrial accident to render her totally and permanently disabled.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The testimony of Claimant taken at hearing;

3. Claimant's Exhibits 1 through 12 admitted at hearing;

4. Defendant's Exhibits AA through CC and EE, admitted at hearing;

5. The post-hearing deposition testimony of C. Scott Humphrey, M.D., taken by Claimant on September 18, 2015;

6. The post-hearing deposition testimony of Jonathan D. Myers, M.D., taken by Claimant on October 27, 2015;

7. The post-hearing deposition testimony of Nancy Collins, Ph.D., taken by Claimant on December 16, 2015; and

8. The post-hearing deposition testimony of Douglas N. Crum, CDMS, taken by ISIF on December 16, 2015.

         All objections posed during the depositions are overruled.          FINDINGS OF FACT          1. Claimant was 57 years old and resided in Jerome at the time of the hearing. She was born in California and lived in England until moving to Jerome when she was 12 years old. She is right handed. Claimant attended high school but quit during the 10^th grade. She has never obtained a GED. After leaving high school she worked as a waitress. By 1982, she was working at Idaho Frozen Foods where she worked for at least 10 years. Her duties included inspecting potatoes, loading boxes, and driving a forklift.          2. Upon encouragement from a friend, Claimant applied for and was hired at First Interstate Bank as a teller, where she worked for five years. Thereafter she worked at various banking and financial service institutions as a teller, loan processor, and eventually as a branch manager at Home Federal Bank. She became computer literate in various programs performing word processing and spreadsheets. She gained extensive customer service skills and also experience managing loans, savings accounts, checking accounts, money market accounts and IRAs. She also became an experienced manager, hiring, firing, and supervising employees. She later became a licensed loan officer and also worked as a bookkeeper for a milk transportation company. With changes in the economy and financial institution ownership, Claimant began teaching cake decorating classes at a craft store.          3. Prior to 2011, Claimant had a number of health issues resulting in various treatments including surgeries. However, she does not allege and the record does not establish that any of these health issues hindered her ability to perform her usual work.          4. For exercise during cold weather, Claimant walked four miles per day, five days per week in the mall. On February 4, 2011, Claimant tripped on a curb as she approached the mall and fell, breaking her left proximal humerus near the shoulder. Conservative care did not produce satisfactory healing and on April 18, 2011, Frederick Surbaugh, M.D., performed left shoulder hemiarthroplasty. Thereafter Claimant was not able to regain full range of motion and in August 2011, Dr. Surbaugh performed left shoulder manipulation under anesthesia.          5. Claimant applied on-line for work at Pioneer Federal Credit Union (Pioneer). She presented for an interview with her left arm still in a sling. She was hired, but requested two weeks before starting to allow her left shoulder additional time to heal. Pioneer obliged.          6. On September 12, 2011, Dr. Surbaugh released Claimant to work at Pioneer without restrictions at her request. She was not in a sling when she started working at Pioneer; however, she noted intermittent and unpredictable left shoulder spasms when working. She continued to perform home exercises for her left shoulder.          7. On November 15, 2011, Claimant was working for Pioneer when she pulled her cash drawer from its storage shelf with both hands. Her left hand slipped and the cash drawer fell to the floor, yanking her right shoulder. She noted immediate difficulty raising her right arm and within a short time was unable to move her right arm. She reported the incident and sought medical treatment from Dr. Surbaugh. He diagnosed rotator cuff tears, which were subsequently confirmed by MRI. Prompt right shoulder surgery was recommended.          8. On December 21, 2011, Dr. Surbaugh performed right shoulder surgery. Claimant's recovery following surgery was slow. Dr. Surbaugh retired and his partner, John Howar, M.D., assumed care. On May 29, 2012, Dr. Howar noted that Claimant was developing CRPS type II in her right shoulder.2 Claimant's right shoulder has been chronically afflicted with CRPS since that time and has required ongoing pain medications. ...